July 28, 2010 · 18:09

Copycat Court

When comparative constitutional law scholars talk about “borrowing” foreign jurisprudence, I don’t think they meant plagiarizing foreign sources.

The case in question, Isabelita Vinuya of Malaya Lolas Organization vs. Foreign Affairs Secretary Alberto Romulo, rejected the claims of 70 Filipino “comfort women”for reparations for sexual abuse suffered during World War II. The decision, written by Associate Justice Mariano del Castillo, found that prohibitions against sexual slavery and torture did not constitute jus cogens norms.

However, according to Philippine law professor Harry Roque, Justice del Castillo lifted parts of several American law review articles, particularly A Fiduciary Theory of Jus Cogens by Ivan Criddle and Evan Fox-Descent. Roque and others have filed a motion for a reconsideration of the case. For his part, according to his comments on the Opinio Juris blog (see the first comment), Prof. Criddle seemed most troubled that his article was cited in order imply that sexual slavery and torture do not fall under jus cogens.

The Supreme Court is forwarding the allegations to the new 6-justice ethics committee, created late in Chief Justice Puno’s term. This will be the first case before the committee regarding another justice’s conduct. As such, it could be an interesting test case to see whether the new committee has teeth and will clear up some of the problems discussed in Shadow of Doubt.

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Filed under Philippines, Supreme Court

July 28, 2010 · 13:40

It’s tough being a poor criminal

I’ve blogged a bit about Indonesia’s judicial mafia (although admittedly I haven’t given it the attention it deserves). That’s why I thought I’d at least link to and comment on this new Asia Sentinel article about the “judicial mafia.”

The article starts by contrasting the case of Ms. Siti Hasana, who stole $100 worth of hairdryers and beauty creams, with rich defendants who are able to bribe judges. She then complains that she couldn’t afford bail and he prosecutors insisted on going to trial.

To me, this seems like a distinctly unsympathetic case. Siti claimed she only stole because she was poor, but beauty products! Really? The article seems to be attempting to criticize Indonesia’s justice system, but through the lens of a perfectly normal prosecution. This is an important problem in the study of foreign justice systems – just what is fair in criminal prosecutions? At one point do you claim that the system acted improperly with respect to a particular defendant?

Siti’s lawyer also makes some “interesting” claims with regard to judicial corruption:

Not only in this case, but in almost all cases, it is very hard to prove any corruption, but we can feel it. We can smell indications of corruption. In this case I would say there are indications the owner of the shop may have bribed the prosecutors, but I can’t prove that.

I don’t doubt that corruption riddles the court, but this type of argument by innuendo does nothing but tarnish the judiciary’s image. If anything, the statement sounds less like an analysis of Indonesian judicial reform than an attempt to mount a case for his client (after all, if the courts are corrupt, her guilty verdict can’t be fair, right?).

The articles discussion of the disparities between prison conditions is more substantive. The rich can obtain luxurious prisons (and usually early release), while the poor are locked in squalid dungeons. Here is an excerpt:

Tommy Suharto, the son of the former dictator, was found guilty of killing the judge who sentenced him to 18 months in jail for corruption. He received 15 years in jail, but only spent four of them in prison where he was served by personal staff in a comfortable room. 

Danang Widoyoko, the coordinator of Indonesian Corruption Watch, says that stories of inmates living very comfortably in prison are all too common.

“There is a joke in Indonesia that you can buy everything in prison except a car and get everything except your freedom. If you have money you can buy everything. You can decorate your cell, or choose which room you want. If you want air-conditioning or free access for your family – that is actually offered by prison guards. Of course bribery is involved and there is still no policy to address this situation,” he said.

Overall, it’s important to remember that, while judicial corruption is real and extremely damaging, not all claims of judicial corruption should be treated equally. If anything, politicians and litigants all might allegations of judicial corruption to advance their own goals.

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Filed under corruption, indonesia

July 27, 2010 · 14:15

More on Philippine executive-judicial relations

It seems the Aquino administration has begun its term in office not by trashing the judiciary, but trying to tell it what to do. In two recent incidents, the executive has been accused of asking the judiciary to deal with certain cases in a certain way. In many legal systems, this comes dangerously close to ex parte communication.

The first case involves the Aquino family plantation Hacienda Luisita. According to Newsbreak, Supreme Court Chief Justice Corona met with President Aquino’s uncle, Jose “Peping” Cojuangco. It’s not clear what actually happened or if the meeting even took place, but it seems clear that the case will be worth watching.

The second case is a retrial of the alleged Maguindanao massacre perpetrators. Justice Secretary Leila de Lima warned that if the Regional Trial Court did not move to resume the case (after the defendants filed an array of procedural motions), than she would file a motion to resume the case. She said her motion would serve as a “friendly reminder” to the judge…

It seems, if anything, that the bitter acrimony during the campaign is probably going to be forgotten (or at least shelved). The administration depends too much upon the judiciary for too many important cases to attempt anything like an impeachment of the justices (something Aquino had vowed to pursue). However, if the Supreme Court rules against him in an important case, perhaps we’ll see a return of that heated rhetoric.

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July 26, 2010 · 22:50

Update Disappointment with KRT

UPDATE: There’s been some disappointment that Duch only received a 30-year sentence (reduced to 19 years for time already served). There are some reactions in this Straits Times article. On the one hand, 19 years isn’t a particularly long sentence for genocide. On the other, Duch is already 67 years old and not in great health – it’s not like he’s going to have a long, productive life after being released from prison. We’ll hopefully see more reactions over the next few days…

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July 26, 2010 · 15:12

One guilty, how many to go?

As anybody following Southeast Asia has probably heard, the Khmer Rouge Tribunal has sentenced Duch to 30 years imprisonment (reduced by 11 years for time already served) for his role in the Khmer Rouge genocide. This is significant less because of the result (Duch essentially confessed his guilt), but rather for the fact that it was actually reached. After all, 30 years is not a particularly heavy sentence for genocide, but it reflects the first time a KR leader has been sentenced by a court with some semblance of legal legitimacy.


In a recent East-West Center Asia-Pacific Bulletin (published before the Duch verdict), Kheang Un and Judy Ledgerwood discussed the KRT and some of its implications for Cambodia. On the public awareness front, the KRT seems to have had some success. According to a 2009 DC-Cam survey, 92.7% of interviewees strongly supported the tribunal, up from 69% an IRI survey the previous year. The author’s credit television programs such as the British-sponsored Duch on Trial and other outreach.

However, Duch’s case was the low-hanging fruit of the KRT process. Despite a last-minute plea for mercy, he essentially cooperated with the court and confessed his crimes (and the trial was still very expensive). The KRT has a mandate to try at least four more other KR leaders, none of whom has taken Duch’s conciliatory approach. As such, it’s unclear how successful the KRT will be in future cases.

Kheang Un and Judy Ledgerwood are much more pessimistic about Cambodia’s own judicial system. The courts are understaffed and underfunded. Judges often face resistance from the police in executing warrants and arrest orders. While some advocates of the KRT hoped the presence of an international justice system might spur reforms (or at least a healthy envy), this seems unlikely. As the authors note, no matter how much they might respect or prefer the international standards of the KRT, Cambodian judges must respond to domestic political pressures. Unless the CPP government’s attitude towards the judiciary and judicial reform changes, the KRT will likely be a footnote to Cambodian judicial history, not a spur for reform.

Here’s a useful website by the Phnom Penh Post for more background on the KRT and Duch trial.

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Filed under Cambodia, Khmer Rouge Tribunal